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Objection! #6: Analyzing the Supreme Court's EMA Hearing

JUSTICE SOTOMAYOR: Could you get rid of rap music? Have you heard some of the lyrics of some of the rap music, some of the original violent songs that have been sung about killing people and about other violence directed to them?

JUSTICE SOTOMAYOR: Why isn't that obscene in the sense that you are using the word, or deviant?

MR. MORAZZINI: I'm not sure initially that it's directly harmful to the development of minors in the way that we know that violent video games can be. We know that violent material, like sexual material, appeals to a base instinct in especially minors. It has -- it can be presented in a manner --

JUSTICE ALITO: When you talk about minors, what are you -- what age group are you talking about? If a video game manufacturer has to decide under your statute how to -- where its game stands, what age of a child should the manufacturer have in mind? A 17-year-old? A 10-year-old?

Eric says: It's always important to define terms. So many arguments get off into la-la land because one set of people are using a term to mean one thing, and another set another thing.

MR. MORAZZINI: Your Honor, I would submit that, just like in the obscenity context for minors, a law similar to the New York law at issue in Ginsberg, though California's law hasn't been construed or applied, I would submit that the jury would be instructed to consider minors as a whole. In California that's under 18 years old. So I believe they would just be instructed minors as a class.

JUSTICE ALITO: How can they -- how can they do that? Isn't the average person likely to think that what's appropriate for a 17-year-old may not be appropriate for a 10-year-old or an 8-year-old?

Eric says: Another excellent point.

MR. MORAZZINI: Your Honor, I think juries and judges do this every day in the --

Eric says: Mr. Morazzini misses a good counterargument here. Yes, 17-year-olds are different from eight-year-olds in terms of what's appropriate, but you've got to (practically speaking) draw the line somewhere. Maybe he's just getting caught up by all the crossfire.

JUSTICE GINSBURG: But California doesn't do that. California has in big letters "18." So it's not is it okay for a 7-year-old, is it okay for a 12-year-old. Part of this statute requires labeling these video games in big numbers "18." So it's 18 and California doesn't make any distinctions between 17-year-olds and 4-year-olds.

MR. MORAZZINI: Justice Ginsburg, and I think rightfully so. I think a jury would be charged with perhaps the standard of what the community believes an average minor. So the would consider --

JUSTICE SCALIA: An average minor is halfway between 0 and 18; is that 9 years old?

Eric says: Isn't getting bitched around in front of the Supreme Court and its huge audience fun!?

MR. MORAZZINI: Fair point, Justice Scalia. I think a jury could be instructed as to the typical age group of minors that are playing these games.

JUSTICE BREYER: Why wouldn't you, if necessary, simply say that a video game that appeals to the prurient, shameful, or morbid interests of those 18 -- or under, but let's take 18 -- and it's not suitable in the community for those 18, and it has no redeeming importance of any kind, no serious literary, artistic, political, or scientific value for those 18, that at least as to those, you can't sell it without -- the parent can buy it but the child can't buy it. So you can't sell to a 12-year-old something that would be horrible for an 18-year-old. Is that -- would you be willing to accept that if necessary to make this okay on its face?

Eric says: This confusingly worded question refers to the general standard of what is defined as "obscene" by the SCOTUS for regulatory purposes. If some type of speech (usually pornography) appeals to prurient, shameful, or morbid interest and has no serious literary, artistic, political, or scientific value, it can be deemed obscene, and regulated to some degree. It loses some First Amendment protections. So, Justice Breyer is asking: If something were deemed "obscene" for an 18-year-old, would that be regulable for anybody according to California law's standards?

MR. MORAZZINI: Justice Breyer, absolutely.

JUSTICE BREYER: Okay.

JUSTICE KAGAN: Mr. Morazzini, could I take you back to Justice Scalia's original question, which was what counts as deviant violence or morbid violence. Because I read your briefs all the way through and the only thing that I found you said that was clearly covered by this statute was Postal 2. But presumably the statute applies to more than one video game. So what else does it apply to? How many video games? What kind of video games?

I mean, how would you describe in plain English what morbid violence is, what you have to see in a video game for it to be covered?

Eric says: Postal 2, a terrible game that no one played, is now the poster boy for video game violence and inappropriateness. Ironically, it's been outdone in nearly every category of shock value by various later games. Whee!

MR. MORAZZINI: Okay. Justice Kagan, I would go back to the language of the statute, and the statute covers video games where the range of options available to the player includes maiming, killing, dismembering, torturing, sexually assaulting, and those types of violence. So I would look to games where --

JUSTICE KAGAN: So anything that has those kinds of violence counts?

MR. MORAZZINI: No, and then we would move to the three prongs of the Miller standard, Your Honor. We would look to see --

JUSTICE KAGAN: Well, so how do we separate violent games that are covered from violent games just as violent that are not covered?

MR. MORAZZINI: Well, Your Honor, I think a jury could be instructed with expert testimony, with video clips of game play, and to judge for themselves whether --

JUSTICE SCALIA: I'm not concerned about the jury judging. I'm concerned about the producer of the games who has to know what he has to do in order to comply with the law. And you are telling me, well a jury can -- of course a jury can make up its mind, I'm sure. But a law that has criminal penalties has to be clear. And how is the manufacturer to know whether a particular violent game is covered or not?

Eric says: Justice Scalia asks a very important question about speech-regulating laws here. The issue is what's called the "chilling" effect that such laws have on the willingness of people to speak freely -- if a company is afraid its game is going to be banned in California, it's not going to put certain things in it. This not only hurts game producers and audiences everywhere, it also (in a perverse way) allows the California law to regulate the entire world (or at least the entirety of North America) by making it impossible for a game manufacturer to make anything that would be theoretically unsellable in California.

MR. MORAZZINI: Well, Your Honor --

JUSTICE SCALIA: Does he convene his own jury and try it before -- you know, I really wouldn't know what to do as a manufacturer.

MR. MORAZZINI: Justice Scalia, I am convinced that the video game industry will know what to do. They rate their video games every day on the basis of violence. They rate them for the intensity of the violence.

Eric says: He's convinced. Well in that case, it's a-OK with me! I'm sure the video game companies will figure it out, with their crack teams of violence-deciders.

JUSTICE KAGAN: So is what is covered here the mature category in the ratings? Is that what this statute covers? Is that what it's meant to cover?

MR. MORAZZINI: I believe that some mature¬rated games would be covered, but not all.

JUSTICE KAGAN: Some but not all.

MR. MORAZZINI: But not all.
Your Honor, just like with sexual material, we can -- we can trust individual panderers of sexual material to judge whether or not it's a --

JUSTICE KENNEDY: Let me just make one comment on that point. It seems to me all or at least the great majority of the questions today are designed to probe whether or not this statute is vague. And you say the beauty of the statute is that it utilizes the categories that have been used in the obscenity area, and that there's an obvious parallel there.

The problem is, is that for generations there has been a societal consensus about sexual material. Sex and violence have both been around a long time, but there is a societal consensus about what's offensive for sexual material and there are judicial discussions on it. Now, those judicial discussions are not precise. You could have had the same questions today with reference to an obscenity statute, and we have -- we have said that, with reference to obscenity there are certain -- that there are certain materials that are not protected. Those rules are not precise at the margins and some would say not precise in a more significant degree as well.

But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this is -- and this indicates to me the Alderson Reporting Company statute might be vague, and I just thought you would like to know that -- that reaction.

Eric says: Justice Kennedy makes an interesting and important point here. He's saying that obscenity regulations have been around forever with regard to sexuality, and it's still a very difficult, thorny area without much to go on for people who want to judge what's obscene. If we apply the standards from that related area to violence -- an area with no history of regulation whatsoever -- we're really going to be shooting in the dark, and we're going to be dealing with laws that are overly vague by default.

MR. MORAZZINI: Justice Kennedy, as with sexual -- the regulation of sexual material and obscenity, we had to start somewhere. California is choosing to start now. We can build a consensus as to what level of violence is in fact patently offensive for minors, is deviant for minors, just as the case law has developed over time with sexual depictions. Your Honor, I believe the key is the similarities violence has with sex.

Eric says: If you believe violence and sex share certain similarities, this is a fair response. Also, if you believe that, you should know that ball gags are on sale this week at Wal-Mart. Have fun!

JUSTICE SCALIA: What about excessive glorification of drinking, movies that have too much concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence.

You are asking us to create a -- a whole new prohibition which the American people never -- never ratified when they ratified the First Amendment. They knew they were -- you know, obscenity was -- was bad, but -- what's next after violence? Drinking? Smoking? Movies that show smoking can't be shown to children? Does -- will that affect them? Of course, I suppose it will.

But is -- is that -- are -- are we to sit day by day to decide what else will be made an exception from the First Amendment? Why -- why is this particular exception okay, but the other ones that I just suggested are not okay?

MR. MORAZZINI: Well, Justice Scalia, I would like to highlight the fact that the material at issue in Ginsberg was not obscene. Under no existing definition of obscenity was the partial nudity that this Court allowed States to regulate minors' access to --

JUSTICE ALITO: Well, I think what Justice Scalia wants to know is what James Madison thought about video games.
(Laughter.)

JUSTICE ALITO: Did he enjoy them?

JUSTICE SCALIA: No, I want to know what James Madison thought about violence. Was there any indication that anybody thought, when the First Amendment was adopted, that there -- there was an exception to it for -- for speech regarding violence? Anybody?

Eric says: Justice Scalia is famous for his adherence to what's called "originalism" and "strict constructionism" with regard to his approach to the Constitution and the interpretation thereof. Originalism means Justice Scalia wants to know what the original intent of the Framers was when they wrote the Constitution -- because that original intent can be extrapolated to the specific facts of any case at any time. He also tends to go for strict construction, which means he interprets what's on the pages of the Constitution narrowly and literally, informed by that originalist view. Justice Alito is sort of breaking his balls, but it's important to understand where Justice Scalia is coming from with his arguments. James Madison, for the record, is traditionally held to be the primary author of the Bill of Rights, of which the First Amendment is the leadoff batter.

MR. MORAZZINI: Your Honor, as to minors, I believe, looking at some of the historic statutes States had passed, had enacted in the past, there was a social recognition that there is a level of violent material --

JUSTICE SOTOMAYOR: What's the earliest statute?

MR. MORAZZINI: Pardon?

JUSTICE SOTOMAYOR: What's the earliest statute and how much enforcement was --

MR. MORAZZINI: Your Honor, I don't know the earliest statute off the top of my head. I believe they go back into the early 1900s, perhaps later. I apologize, but I don't know that --

JUSTICE BREYER: Well, on the principle, I mean, it's been quite some years, hasn't it, before this -- since this Court has held that one instance that courts -- that the country, legislatures, can regulate are fighting words? And we regulate fighting words, don't we?

MR. MORAZZINI: Absolutely.

JUSTICE BREYER: Because they provoke violence. And the American Psychological Association and the American Pediatric Association have said that certain kinds of video games here create violence when children are exposed. There are 80 people who think to the contrary, there are two huge things of metastudies that think that -- not to the contrary. All right. So what are we supposed to do?

MR. MORAZZINI: Well, Justice Breyer, I think, in going back to Justice Scalia's question, I find it hard to believe and I know of no historical evidence that suggests that our Founding Fathers in enacting the First Amendment intended to guarantee video game retailers a First Amendment right --

Eric says: Justice Ginsburg cuts him off here, and it's a good thing, because this would have been a really terrible line of argumentation. "The Founding Fathers didn't guarantee video game retailers a First Amendment right..." yeah, because video games didn't exist, dude. Lord almighty.